In R. v. Schneider, 2022 SCC 34, October 7, 2022, the accused was convicted of the offence of murder.  At his trial, the Crown led evidence from the accused’s brother who testified that he overheard the accused say to his wife on the phone: “I did it” or “I killed her”.  However, the brother also testified that he could not remember word‑for‑word what the accused had said. He indicated that what he heard was “along those lines”.

On appeal to British Columbia Court of Appeal, the conviction was set aside and a new trial ordered.  The Court of Appeal concluded that the brother’s description of what he heard was not capable of meaning, therefore not relevant and thus inadmissible. 

The Crown appealed to the Supreme Court of Canada.  The Supreme Court described the issues raised in the following manner:

..whether what the witness overheard had meaning, such that it was relevant to an issue at trial. Second, whether what the witness overheard was admissible under an exception to the general exclusionary rule against hearsay. Third, whether the trial judge appropriately refused to exclude the evidence on the basis that the probative value outweighed the prejudicial effect.

The appeal was allowed and the conviction restored.  The Supreme Court answered each question in the affirmative. The Supreme Court held that ‘[w]hat the witness overheard the accused say on the phone was capable of non-speculative meaning such that it was relevant; it was admissible under the ‘party admission’ exception to hearsay; and there is no basis to disturb the trial judge’s decision to admit the evidence” (at paragraph 2).

Relevance:

In concluding that the brother’s evidence was relevant and therefore admissible, the Supreme Court concluded “there was sufficient context for the jury to give meaning to the words that the brother overheard” (at paragraphs 63 and 64):

The brother’s testimony regarding the overheard conversation was relevant. First, there was sufficient context for the jury to give meaning to the words that the brother overheard, such that the evidence overcomes the low threshold for (logical) relevance. Second, it is not fatal that the brother was uncertain as to the exact words that he heard the accused say. The equivocal nature of the brother’s testimony is a factor for consideration when weighing the probative value against the prejudicial effect. It also relates to ultimate reliability and believability; but those are for the trier of fact in weighing the evidence, rather than the judge in the relevance analysis.

The trial judge needed to determine whether, on the basis of all the evidence, the jury could give meaning (in a way that was not speculative) to what the brother testified that he overheard. The context extended beyond the narrow scope that the majority of the Court of Appeal applied. Other evidence properly informed the brother’s testimony as to what he overheard.  In the days leading up to the phone call at issue, the accused and the brother had spoken about the victim. During these conversations, the accused admitted he had done “something bad”, told the brother that it was “true” (A.R., vol. II, at pp. 107, 111 and 113), and the brother said that the accused was “remorsefully sad. Glad to get it off his chest, per se” (p. 121). On the day of the phone call: the accused told the brother where the victim’s body was; the brother was with the accused when he attempted suicide; and the brother was with the accused in the time leading up to the phone call to his wife. Finally, the brother testified that the accused referred to the victim at the opening of the call. The brother was present, although standing approximately 10 feet away, for the entire call.

The Court described Ferris as “good law”, but suggested that it “must be carefully read” (at paragraph 72).  It indicated that that Ferris “should not be understood as standing for the proposition that incomplete recollection of a party admission leads to exclusion of such evidence or that it is only ‘micro context’ that can inform meaning and, thus, relevance. In assessing (logical) relevance, what matters is whether the evidence tends to increase or decrease the probability of the existence of a fact at issue” (at paragraph 76).

The Court indicated that it is important to “bear in mind the difference between relevance and ultimate reliability. How well the brother could recall the words said by the accused relates to the latter, which is a question for the trier of fact. Few people would remember the exact words used in a recent conversation that they listened to intently. Nonetheless, many of us would be able to recall the gist of that conversation. The rules of evidence must respond to this reality. Probative value analysis and the weight given to the evidence by the trier of fact are sufficient mechanisms to address frailties of memory. These frailties do not also need to be addressed when determining relevance” (at paragraph 71).

Hearsay:

The Supreme Court held that the brother’s evidence “was hearsay and, thus, inadmissible under the general exclusionary rule. However, the brother’s evidence was that the accused had, by his words, admitted responsibility for Ms. Kogawa’s death. This evidence is something that a party said or did and relates to an issue at trial…As such, the evidence is a party admission and comes within a recognized exception to the general exclusionary rule” (at paragraph 78).